"Tabloid Journo's Should Beware!" (Press Gazette)

 

The House of Lords has rejected an application for permission to appeal brought by Niema Ash against the Court of Appeal's groundbreaking decision which upheld Canadian singer Loreena McKennitt's right to “the human dignity of privacy”.  The Court of Appeal ruling has very significant implications for the right to privacy of everyone facing intrusive media scrutiny, whether they are public figures or not.

In the summer of 2005, Ms Ash, a British resident, published a book about the Canadian singer/composer. After a 10-day High Court trial in November 2005, which was heard in private (unlike other recent privacy trials), substantial passages of the book were restrained, by order of Mr Justice Eady. Ms Ash then appealed against the ruling.  The media were so concerned about its impact that they intervened in the appeal, which was heard in November 2006.

The landmark Court of Appeal decision makes clear that individuals are allowed personal autonomy and have the right to object to the publication of intrusive material even if the person has spoken previously in public about this "zone" of his or her life. Reliance on old press-cuttings by the media is no longer a complete answer to a claim for privacy.

The ruling also deals a blow to the "role model" argument frequently relied on by the media as a justification for publishing intrusive stories about well-known individuals. With regard to the disclosure of particularly intrusive material, this can only be justified (after a careful analysis of the competing rights) where Article 10 rights outweigh the privacy right - for example where there is a compelling public interest, such as exposure of criminal conduct or the correcting of misleading statements.

Contrary to recent misleading reports in the media, Ms McKennitt did complain that substantial parts of the book were untrue, distorted or misleading.  The ruling was significant in finding that a complainant in privacy does not now have to explain which parts of an article are true or false.  The critical question is whether the material is an invasion of privacy, not whether it is true or false. This may open up new 'false privacy' claims against the media as an alternative to libel claims.

The fact that Ms Ash was a trusted confidante who had signed a confidentiality agreement was also a significant factor for the Court.  The case underlines the importance of ensuring that confidentiality agreements are used.

Finally, the Court expressly adopted the principles from the Princess Caroline of Monaco case in the European Court despite strong arguments from the media that the Princess's case was primarily concerned with paparazzi harassment.

Ms McKennitt was represented by Mark Thomson.

Get Carter-Ruck
Winter 2007